93 Decision Citation: BVA 93-10043
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-24 440 ) DATE
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THE ISSUES
1. Entitlement to an increased evaluation for postoperative
epididymitis, bilateral, with orchitis, rated as 20 percent
disabling.
2. Entitlement to a total disability rating for
compensation on the basis of individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in North
Little Rock, Arkansas. The veteran served on active duty
from August 1943 to August 1947. In April 1991 the RO
continued the noncompensable evaluation for the veteran's
genitourinary disability then classified as epididymitis,
bilateral, with status post epididymectomy. The notice of
disagreement with the above determination was received in
July 1991. In September 1991 the RO continued the
determination previously entered. A statement of the case
was issued in October 1991. The substantive appeal was
received in November 1991. The representative, The American
Legion, submitted written arguments in January 1992.
In May 1992 the RO promulgated a rating decision
reclassifying the veteran's genitourinary disability to
postoperative epididymitis, bilateral, with orchitis,
assigning an increased evaluation of 20 percent, and denying
entitlement to a total disability rating for compensation on
the basis of individual unemployability. A supplemental
statement of the case was issued in May and July 1992. A
hearing was held before a hearing officer at the RO in
September 1992. In a September 1992 decision, the hearing
officer affirmed the determination previously entered.
The representative submitted additional written arguments in
October 1992. A supplemental statement of the case was
issued in October 1992. The representative submitted
additional written arguments in November 1992. The case was
received and docketed at the Board in December 1992. The
representative submitted further written arguments in March
1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in assigning
only a 20 percent evaluation for his genitourinary
disability. He argues that his genitourinary disability is
more disabling than currently rated, thereby warranting
assignment of a higher evaluation. He also argues that his
genitourinary disability has rendered him unemployable,
thereby warranting assignment of a total disability rating
for compensation on the basis of individual unemployability.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against assignment of an increased evaluation for
postoperative epididymitis, bilateral, with orchitis; and a
total disability rating for compensation on the basis of
individual unemployability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. The veteran's postoperative epididymitis, bilateral,
with orchitis is productive of pain and swelling compatible
with bilateral inguinal hernias.
3. There were no exceptional or unusual circumstances
present in the veteran's case that would have warranted a
referral to the Director of the Compensation and Pension
Service.
4. The service-connected genitourinary disability has not
rendered the veteran unable to engage in all kinds of
substantially gainful employment.
CONCLUSIONS OF LAW
1. An evaluation in excess of 20 percent for postoperative
epididymitis, bilateral, with orchitis is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), Part 4, 4.7, 4.20, 4.40, Diagnostic
Code 7338 (1992).
2. Failure of the RO to consider or to document its
consideration of 38 C.F.R. § 4.16(b) constituted harmless
error. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.16(b) (1992).
3. The requirements for a total disability rating for
compensation on the basis of individual unemployability have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321, 3.340, 3.341, Part 4 and 4.16(a) (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have found that the veteran's claims are plausible and,
therefore, "well-grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). We are satisfied that all relevant
facts have been properly developed, that the evidence of
record is sufficiently complete, and that no further
assistance to the veteran is required in order to comply
with our duty to assist him in a development of facts
pertinent to his appeal. Sanders v. Derwinski,
1 Vet.App. 88 (1990); Murphy v. Derwinski, 1 Vet.App. 78
(1990); and Littke v. Derwinski, 1 Vet.App. 90 (1990).
It has been the contention of the veteran that his
genitourinary disability is more disabling than currently
rated and that, due to its severity, he has been rendered
unable to work. Associated with our adjudicatory
consideration of his appeal is an assessment of the
credibility to be accorded to his statements, both oral and
written, pertaining to increased compensation benefits.
O'Hare v. Derwinski, 1 Vet.App. 365 (1991); and Ferguson v.
Derwinski, 1 Vet.App. 428 (1991). We are not required to
accept any assertion not substantiated by the evidence of
record. Smith v. Derwinski, 2 Vet.App. 137 (1992). It is
our finding that while the veteran may sincerely believe
that his genitourinary disability is more disabling than
currently rated and has rendered him unable to work, his
arguments in this regard have not been corroborated by the
evidence of record. Wood v. Derwinski, 1 Vet.App. 190
(1991). In the following paragraphs, we will explain the
reasons for our determination that the veteran's appeal must
be denied.
I. Increased Evaluation for Postoperative
Epididymitis, Bilateral, with Orchitis
A review of the service medical records discloses that the
veteran was treated for acute epididymitis from December
1945 to January 1946. A December 1946 medical examination
disclosed slight tenderness over the left epididymis and the
diagnosis then offered was bilateral mild epididymitis. The
RO granted entitlement to service connection for bilateral
epididymitis with assignment of a noncompensable evaluation
when it promulgated a rating decision in June 1963. The
September 1991 VA genitourinary examination report disclosed
tenderness above the posterior and above the right testicle
with less tenderness in the same area on the left in the
scrotum. The February 1992 VA urology examination report
shows that the veteran had undergone a right epididymectomy
and circumcision in 1964. He complained of a continuation
of symptomatology with mild to moderate lower urinary tract
obstructive symptoms. A medical examination disclosed
tenderness in the spermatic cords and the right epididymis
was surgically absent. The left epididiymis felt normal,
but was tender. The right testicle measured 5 by 3 by
3.5 centimeters and the left side measured almost the same.
A medical examination of the veteran was conducted by VA in
April 1992. An examination of the scrotal contents
disclosed that the testicles were descended bilaterally and
were of normal size, shape and consistency. The examiner
did not palpate a right epididymis. The left epididymis was
of normal consistency and normal size. The spermatic cord
structures were of normal consistency. The relevant
diagnostic impressions were postoperative status for right
epididymectomy, bilateral testalgia, and recurrent left
epididymitis. The RO granted an increased evaluation of
20 percent for the veteran's genitourinary disability when
it promulgated a rating decision in May 1992.
Our evaluation of the clinical findings reported by VA in
September 1991 and April 1992 does not allow us to conclude
that an increased evaluation for the veteran's genitourinary
disability is warranted with application of pertinent
governing schedular criteria. No question has been
presented as to which of two evaluations would more properly
classify the severity of the veteran's genitourinary
disability. 38 C.F.R. § 4.7 (1992). His genitourinary
disability has not required frequent inpatient care as to
render impractical application of regular schedular
standards, thereby precluding assignment of a higher rating
on an extraschedular basis. 38 C.F.R. § 3.321(b)(1)
(1992). The veteran's symptomatology for the most part
consists of tenderness and pain. He has been rated for his
genitourinary disability by analogy to bilateral inguinal
hernias under Diagnostic Code 7338 of the VA Schedule for
Rating Disabilities. The 20 percent evaluation contemplates
bilateral inguinal hernias. The next higher evaluation
under Diagnostic Code 7338 is 30 percent which requires a
level of disability compatible with a small recurrent
postoperative inguinal hernia, or an unoperated irremediable
inguinal hernia which is not well supported by a truss or is
not readily reducible. The above level of impairment does
not apply to the veteran's case. The 20 percent evaluation
contemplates the veteran's tenderness and pain, thereby
precluding assignment of a higher rating with application of
the criteria under 38 C.F.R. § 4.40 (1992). The most
recently dated VA genitourinary examination reports do not
provide an adequate evidentiary basis to allow us to
conclude that assignment of a higher rating for the
veteran's genitourinary disability is warranted at this
time. In fact, recent examinations have shown the
structures to be normal and no physical findings to account
for the complaints of pain were reported. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), Part 4,
4.7, 4.20, 4.40, Diagnostic Code 7338 (1992).
II. Total Disability Rating for Compensation
on the Basis of Individual Unemployability
The veteran's only service-connected disability is his
postoperative epididymitis, bilateral, with orchitis, rated
as 20 percent disabling. Entitlement to special monthly
compensation under 38 U.S.C.A. § 1114(k) (West 1991) and
38 C.F.R. § 3.350(a) (1992) on account of loss of use of a
creative organ has been granted. It is our finding that the
veteran's service-connected genitourinary disability has not
rendered him unemployable for VA compensation purposes. In
his employment information statement received in July 1992,
the veteran reported that he had one year of high school and
had taken many courses in mechanical and electrical
engineering, business management, etc. He reported that he
had last been able to work in 1987 and had had occupational
experience as a field engineer and the owner of his private
heating and air conditioning business. The veteran's
service-connected genitourinary disability, when evaluated
in association with his educational level and occupational
background, is not sufficiently disabling as to allow us to
conclude that he has been rendered unable to perform all
kinds of substantially gainful employment. Moore v.
Derwinski, 1 Vet.App. 83 (1991), and 1 Vet.App. 356 (1991).
The record indicates the veteran stopped working in 1988,
the year in which he became 62 years old. Age is not a
factor which may be considered in determining entitlement to
this benefit. 38 C.F.R. § 3.341.
Our evaluation of the evidentiary record does not allow us
to conclude that there were any exceptional or unusual
circumstances present that would have warranted a referral
of the veteran's case by the RO to the VA Director of the
Compensation and Pension Service. 38 C.F.R. § 4.16(b)
(1992). It is not shown that the veteran requires a
substantial quantity of medication to treat his
service-connected genitourinary disability. He has an
acceptable educational level and occupational background.
For the foregoing reasons, we conclude that the veteran's
case is not exceptional in nature and that there are no
unusual circumstances which would warrant referral of his
case to the VA Director of the Compensation and Pension
Service. For the foregoing reasons, we conclude that the
service-connected genitourinary disability has not rendered
the veteran unemployable for VA compensation purposes.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 3.340, 3.341, Part 4, 4.16(a)(b) (1992).
ORDER
An increased evaluation for postoperative epididymitis,
bilateral, with orchitis, is denied.
A total disability rating for compensation on the basis of
individual unemployability is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) JAN DONSBACH
JOAQUIN AGUAYO-PERELES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.